Citation Nr: 0213211
Decision Date: 09/30/02 Archive Date: 10/03/02
DOCKET NO. 97-07 621 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to an increased rating for a hiatal hernia.
2. Entitlement to an increased rating for urticaria.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. M. Daley, Counsel
INTRODUCTION
The veteran had active service from September 1963 to August
1966 and from November 1966 to November 1984.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a December 1996 rating decision of the Reno,
Nevada, Department of Veterans Affairs (VA) Regional Office
(RO).
REMAND
The Board remanded the issues on appeal in January 2000.
Although further delay is regrettable, additional development
is indicated at this time, as set out below.
First, the veteran is service connected for a hiatal hernia.
The historical record reflects his appeal of the RO's denial
of a rating in excess of 10 percent for such disability.
Although the narrative reasons and bases indicate that a 10
percent rating is confirmed, without assignment of a 30
percent rating for the veteran's hiatal hernia, the issue and
decision statements in the most recent supplemental statement
of the case, issued in April 2002, are conflicting with
respect to whether a 10 percent or a 30 percent rating is
assigned to the veteran's hiatal hernia at this time. The
veteran's local representative, however, in the statement
dated July 24, 2002, then notes that the RO increased the
rating assigned to a hiatal hernia to 30 percent in April
2002. Thus, clarification as to the current rating assigned
to the veteran's hiatal hernia is appropriate.
Moreover, the Board finds that clarifying examination
evidence would be useful in determining the propriety of the
rating to be assigned to a hiatal hernia as the most recent
examination conclusions of severe symptoms resulting in
considerable impairment in health appear inconsistent with
the veteran's own reports of self-treatment with no more than
over-the-counter antacids and also inconsistent with the lack
of medical treatment or recommended intervention for his
hiatal hernia.
Second, the veteran is currently service-connected for
urticaria, evaluated as 30 percent disabling and rated as
analogous to eczema under 38 C.F.R. § 4.118, Diagnostic Code
7817-7806 (2001). The Board notes that during the pendency
of the veteran's appeal, the regulation governing the
evaluation of diseases of the skin was revised, effective
August 30, 2002. See 67 Fed. Reg. 49,590-96 (July 31, 2002).
Significantly, the revised regulation includes the addition
of a separate diagnostic code for urticaria. See 67 Fed.
Reg. at 49,596 (July 31, 2002) (to be codified at 38 C.F.R.
§ 4.118, Diagnostic Code 7825); see also corrections at
67 Fed. Reg. 58,448 (September 16, 2002).
The revised regulation provides for rating assignments for
urticaria as follows:
Recurrent debilitating episodes occurring at least four times
during the past
12-month period despite continuous immunosuppressive
therapy........................................................................................60
Recurrent debilitating episodes occurring at least four times
during the past
12-month period, and; requiring intermittent systemic
immunosuppressive therapy for control
....................................................................................30
Recurrent episodes occurring at least four times during the
past 12-month period, and; responding to treatment with
antihistamines or sympathomimetics............10
Because the law changed during the pendency of this appeal,
the veteran is entitled to the application of the version of
the regulation that is more favorable to him. Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991); but see,
VAOPGCPREC
3-2000 (April 10, 2000), published at 65 Fed. Reg. 33,422
(2000) (the Board must apply only the earlier version of the
regulation for the period prior to the effective date of the
change).
The veteran has not been notified of the change in the
regulation and afforded an opportunity to present relevant
argument. As such, remand for further procedural action is
warranted.
Accordingly, the case is returned to the RO for the
following:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 1991 &
Supp. 2001) are fully complied with and
satisfied. See also 66 Fed. Reg. 45620-32
(August 29, 2001) (to be codified at 38
C.F.R. § 3.159).
2. The veteran should be afforded a VA
examination by a physician with the
appropriate expertise to determine the
nature and severity of symptomatology
associated with a hiatal hernia. The
claims folder MUST be made available to
the examiner for review before the
examination. The examiner is requested
to identify the presence, frequency and
severity, or absence of pain, vomiting,
weight loss, hematemesis, melena, anemia,
dysphagia, pyrosis, regurgitation, and/or
substernal or arm or shoulder pain that
are attributable to the veteran's
service-connected hiatal hernia, and to
provide an opinion as to the overall
impact of such symptoms on the veteran's
health and daily functioning.
3. After the development requested above
has been completed to the extent
possible, the RO should again review the
record and re-adjudicate the issues on
appeal. If any benefit sought on appeal
remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case. That
supplemental statement of the case should
include a recitation of all potentially
applicable laws and regulations, to
include the recent regulatory amendments
pertinent to the evaluation of skin
disorders, and a recitation of the
evidence considered in adjudicating the
claims. Further, the supplemental
statement of the case should clearly
identify the current ratings assigned to
urticaria and a hiatal hernia, and
provide the veteran with reasons and
bases for the determinations as to the
propriety of such ratings. The veteran
and his representative should be given
the appropriate period of time to respond
to the supplemental statement of the
case.
Thereafter, subject to current appellate procedure, the case
should be returned to the Board for further consideration, if
in order. No action is required on the part of the veteran
or his representative until further notice is received. The
veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). By this
action, the Board intimates no opinion, legal or factual, as
to the ultimate disposition warranted in this case.
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board or by the United States Court of Appeals for
Veterans Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2002) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
D. C. Spickler
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2002), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).